American Legal History

A lawyer without history and
literature is a mechanic, a mere working mason; if he possess some
knowledge of these, he may venture to call himself an architect.
-- Sir Walter
Scott, Guy Mannering (1815; New York: E. P. Dutton & Co.,
1906), 259.

The Laws of a country are
necessarily connected with every thing belonging to the people of it;
so that a thorough knowledge of them, and of their progress,
would inform us of every thing that was most useful to be known about
them; and one of the greatest imperfections of historians in general,
is owing to their ignorance of law.

The life of the law has not been logic:
it has been experience. The seed of every new growth within its sphere
has been a felt necessity. The form of continuity has been kept up by
reasonings purporting to reduce everything to a logical sequence; but
that form is nothing but the evening dress which the new-comer puts on
to make itself presentable according to conventional requirements. The
important phenomenon is the man underneath it, not the coat; the
justice and reasonableness of a decision, not its consistency with
previously held views. No one will every have a truly philosophic
mastery over the law who does not habitually consider the forces
outside of it which have made it what it is….

-- Oliver
Wendell Holmes, Jr., review of A Selection of Cases on the Law of
Contracts. . . , 2d ed., by Christoper C. Langdell, American Law
Review 14 (1880): 233.

This course concerns itself with the interaction
between the legal system and social change in what is now the United
States. Chronologically, the course materials run from the colonial
period to the late twentieth century, although the nineteenth century will receive
particular emphasis. A principal focus is the interrelationship of law,
social life, economy, and ideology.

Many current legal topics demand some knowledge of history in order to avoid looking like an idiot. In order to speak meaningfully of religious liberty in early America; reparations and its relationship to slavery and segregation; the place of women in the legal system; the nature of corporations; ideas about criminal justice and punishment; the nature of regulation; LGBT rights; the differences between liberalism and neo-liberalism; and so many other topics, one has to have some grounding in actual history.

WARNING

Like all law school courses, this course
contains material that some students may find offensive. For
example, the readings for this course document instances of fornication,
transvestism/hermaphrodism, and bestiality, as well as murder and other
violence. This course is an elective, and any student likely to be upset by this material should avoid this course.

The assignments indicate the topics into
which the course will divide. These topics include colonial regulation
of economy, morality and labor; slavery and racism in
seventeenth-century Virginia; the Revolution; the Constitution; the
legal profession; public lands; native peoples; property law in the
early nineteenth century; corporations; women and family; morality and
social welfare; criminal justice; antebellum slavery; reconstruction;
late-nineteenth-century populism and industrialism; legal education;
legal realism; the New Deal; the history of health-care reform; segregation and the road to Brown; and LGBT rights.

The course consists of 28 lectures of 75 minutes each. During
the lectures, students should feel free to raise questions and initiate
discussion as may be appropriate. Participation in class
discussion is on a voluntary basis.

Prior familiarity with U.S. history is not necessary. The
lectures and reading will provide whatever extralegal background may be
essential, and students should feel free to raise questions in or
outside class.